DCPP VS. P.E., S.M., T.T. AND E.H.IN THE MATTER OF S.T., N.E. AND L.T.(FN-20-12-12, UNION COUNTY AND STATEWIDE)(RECORD IMPOUNDED)(CONSOLIDATED)
A-1961-14T2/A-2103-14T2
| N.J. Super. Ct. App. Div. | May 15, 2017Background
- Samantha (b. 1999) reported to school in March 2011 that her stepfather P.E. had sexually abused her repeatedly from Aug 2010–Feb 2011; she described fondling and oral/penile contact and said P.E. threatened family hardship if she told.
- Division investigator and a detective separately interviewed Samantha the day she disclosed; her accounts were consistent and a videotaped interview was played at hearing.
- Pediatric expert Dr. Gladibel Medina examined Samantha and testified that Samantha displayed significant emotional stress, concentration and sleep problems, and that those symptoms were commonly associated with child sexual abuse.
- S.M. (mother) initially agreed to a safety plan to keep P.E. out of the home; she later signed a written case plan. Despite that, evidence (neighbor testimony and child statements) showed P.E. returned to the home and had contact with the children.
- At the fact-finding hearing Samantha recanted in-court, saying she did not recall the abuse; the court found her out-of-court statements and the videotaped interview more credible and concluded P.E. sexually abused Samantha and S.M. negligently allowed P.E. access to the children in violation of the safety plan.
- Trial court entered final orders; appeals by P.E. and S.M. were consolidated. The Appellate Division affirmed on the record of substantial, credible evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was sufficient, corroborated evidence to find P.E. sexually abused Samantha | Division: Samantha’s consistent out-of-court statements, videotaped interview, and Dr. Medina’s expert testimony corroborate abuse | P.E.: Insufficient corroboration; expert gave an impermissible net opinion; in-court recantation undermines prior statements | Affirmed: Preponderance satisfied; expert testimony and circumstantial evidence (emotional symptoms, test-score drop) corroborated the child’s statements; recantation given little weight |
| Whether S.M. abused or neglected the children by allowing P.E. to return in violation of the safety plan | Division: S.M. agreed to keep P.E. away but permitted his return, creating imminent risk to children | S.M.: No demonstrated nexus between plan violation and imminent/substantial risk of harm | Affirmed: Given allegations of repeated sexual abuse and S.M.’s voluntary agreement, her allowing P.E. contact was grossly negligent and created substantial risk |
| Whether trial court erred in admitting or relying on Dr. Medina’s opinion (net opinion challenge) | Division: Dr. Medina was qualified and grounded conclusions in examination and observed symptoms | P.E.: On appeal, argues opinion was a net opinion lacking factual bases | Rejected: No contemporaneous objection; expert adequately explained bases, and trial court properly weighed credibility |
| Whether an adverse inference should be drawn because Division didn’t call child’s classmates | P.E.: Failure to call classmates suggests Division avoided unfavorable testimony | Division: Other corroborative evidence superior/cumulative | Rejected: Missing-witness inference inappropriate because classmates’ testimony would have been cumulative to the videotaped interview, investigator and expert testimony |
Key Cases Cited
- Cesare v. Cesare, 154 N.J. 394 (1998) (standard for appellate deference to trial factfindings)
- M.C. III v. N.J. Div. of Youth & Family Servs., 201 N.J. 328 (2010) (family court expertise and deference in child-welfare factfinding)
- In re Guardianship of D.M.H., 161 N.J. 365 (1999) (court may act before actual harm when imminent danger exists)
- N.J. Div. of Child Prot. & Permanency v. Y.A., 437 N.J. Super. 541 (App. Div. 2014) (corroboration rules for child’s out-of-court statements)
- Townsend v. Pierre, 221 N.J. 36 (2015) (net-opinion rule for expert testimony — experts must state factual bases and methodology)
- State v. Clawans, 38 N.J. 162 (1962) (limits on drawing adverse inferences from failure to call witnesses)